Jamaica Environment Trust v The Natural Resources Conservation Authority and the National Environment and Planning Agency HCV 05874 of 2010

JET filed an application for judicial review of the decision of the NRCA and NEPA to grant an environmental permit and beach licences to the National Works Agency (NWA) for the construction of a highway, two seawalls and a boardwalk at Palisadoes in Kingston, Jamaica. The Palisadoes strip is part of the Palisadoes/Port Royal Protected Area, declared under Jamaican law in 1998. It is also a wetland of international importance under the 1971 Convention on Wetlands of International Importance (The Ramsar Convention). It contains the main road to the Norman Manley International Airport, and many important natural resources – sand dunes, wetlands, coral reefs, sea grass beds. The strip was damaged by a series of storms and a decision was taken to protect the very narrow part of the strip in 2006/2007. A project was developed by Cuban Engineers to build 310 metres of revetment, dredge sand from an inshore source and replenish the sand dunes. This project design was the subject of an EIA and a public meeting held in 2007. The dunes were to be revegetated afterwards, but this was never done.

In 2010, there was an announcement that this project was going to be expanded to include a four lane highway of four km., two seawalls on both sides of the Palisadoes strip and removal of mangroves on the harbour side. Beach licenses were given by NEPA for the sea walls and the coastal reclamation works, an environmental permit for the wetland modification (harbour side) and a permit for storage of petroleum. Subsequently, a public meeting was held after approvals were granted. The public was told at the meeting that the road would not be four lanes, but two lanes, with two shoulders. JET filed the application for judicial review on March 2, 2011. The main grounds of appeal can be summarized as follows:

1) That the public consultation process was flawed as the NRCA and NEPA breached the legitimate expectation of the public that all the environmental information for the expanded project would have been disclosed before approval had been granted and work had commenced.

2) That the NRCA and NEPA breached their statutory duty or in the alternative acted unreasonably and/or irrationally by failing to require all relevant permits/licenses for the Palisadoes project pursuant to section 9 of the Natural Resources Conservation Authority Act. The activities on land that JET asserted should have been the subject of an environmental permit, were (a) Port and Harbour Development; (b) major road improvement, including the construction of a road of four or more lanes; and/or (c) excavation, clearing and reclamation of a beach.

The judgment was delivered on October 13, 2011 by Justice J. Straw. The Court ruled that:

1) NEPA breached the legal standard for consultation and breached the legitimate expectation that all environmental information relating to the development of the Palisadoes would be disclosed to the public and JET before approval was granted. The court held that where NEPA and NRCA have embarked on a consultation process with the public concerning a development which is subsequently modified, the agencies should re-consult the public and disclose all environmental information. Significant changes to any existing project that has previously been the subject of an EIA and public meeting must be communicated to the public and interested parties before permits are issued and work started.

2) That the beach licenses issues were sufficient to cover the work on land and no additional permits were needed. This was particularly so as a dune restoration plan had been required under the earlier project. While there is currently no definition in Jamaican legislation for a beach, the court held that under the Beach Control Act, NEPA could include any adjoining land in the beach license if there was a public interest to be upheld. The court also held that the term “Port and Harbour Development” must include maritime activity. The court accepted the evidence of respondents that the work being undertaken was not to construct four lanes and stated obiter that if it were a four lane highway it would have required an environmental permit.